Update on Domestic Spying

It’s been a while since we visited the controversy over the National Security Agency’s domestic spying program.

An update:

* Attorney General Alberto Gonzalez changed no minds, including those of a number of skeptical Republicans, after a full day of testimony before the Senate Judiciary Committee on Monday on the spying program.

Mind you, Gonzalez has an all but impossible job in defending as legal something that clearly is illegal in any but the Bush administration's own distorted context. Such was the case when the AG sought to defend the administration’s reprehensible approval of the use of torture last year. Because the facts -- history, precedent, division of powers and all that stuff -- are such inconveniences when trying to defend the indefensible, Gonzalez again had to parse, spin and distort.

Gonzalez would not be tied down on why, if the program was legal, the administration did not ask for approval from a Congress that has given it virtually everything it has asked for in legislation and funding since 9/11. Instead, he repeatedly fell back on “history” to defend the president’s secret authorization of the program, invoking the use of unauthorized surveillance by FDR and other presidents. This conveniently overlooked two realities:

That the all-important Foreign Intelligence Security Act (FISA) allowing domestic surveillance under carefully delineated parameters and the attendant secret court to authorize such surveillance did not come into existence until 1978.

That if the president does indeed have inherent authority to bypass FISA and authorize unauthorized surveillance, then it’s likely that FISA is unconstitutional and needs to be revoked.

Gonzalez also noted that a post-9/11 resolution authorizing the president "to use all necessary and appropriate force" to prevent future attacks gave Bush legislative cover, although surveillance or anything akin to it was not mentioned in the resolution and many congressmen said they would not have voted for it had they known about the NSA program.

* The constitutionality of the president’s actions and the secret program itself looms ever larger in the context of the administration’s piss-poor record of successfully prosecuting terrorists.

There have been pitifully few prosecutions since 9/11 despite hundreds of arrests, while judges have chided the administration for its extra-legal behavior (that is, its allergy to the rule of law) that could jeopardize its credibility before the courts. Sen. Ted Kennedy, the Massachusetts Democrat, warned Gonzalez that the “toughest, meanest and cruelest members of al Qaeda” could escape prosecution if the spying evidence was found to be inadmissible in court. Given the administration's record, that's quite possible.

"If we don't get it right," Kennedy added, "we're going to find that we have paid a very harsh price."

* Administration claims after the New York Timesbroke the spying program story on Dec. 16 that it has resulted in major anti-terrorism gains have not been sustained. One would expect, at the least, murky, deep-sourced stories to bubble to the surface in the conservative press to bolster the claims. There have been none because the claims are a lot of hot air.

* The dissent-averse White House is resorting to the usual hardball tactics in threatening the refreshingly sizeable number of Republicans who are skeptical of the spying program.

Reports Insight:

Congressional sources said Deputy Chief of Staff Karl Rove has threatened to blacklist any Republican who votes against the president. The sources said the blacklist would mean a halt in any White House political or financial support of senators running for re-election in November.

In the end, Sen. Russell Feingold, the Minnesota Democrat, said it best:

This administration reacts to anyone who questions this illegal program by saying that those of us who demand the truth and stand up for our rights and freedoms somehow has a pre-9/11 world view. In fact, the President has a pre-1776 world view. Our government has three branches, not one. And no one, not even the President, is above the law.